8/4 Session #1: A New Judge, Part One

The scene on the grainy Fort Meade screen is different: there’s a new judge. Consistent with a recent and abrupt change-up in the case, the judicial bench is filled today not by Army Col. James Pohl, but by his recently named successor, Air Force Col. Vance Spath. The latter is the Chief Judge of the Air Force, but now wears the hat of commissions military judge in this capital case---and calls our proceedings to order.  The accused is in the courtroom. (It's a bit hard to keep track of the action: there’s some flckering in and out of the video, apparently occasioned by mechanical adjustments down at GTMO.) First up are some procedural odds and ends--counsel identification, and noting, for the record, of legacy motions that Judge Spath rather than Judge Pohl will decide. The substitution of one judge for another does not alter the traditional voluntariness colloquy, though, in which the court and Al-Nashiri now engage.  After reading the advice of rights, Judge Spath asks whether Al-Nashiri understands his rights to attend, and the potential consequences of waiving such rights.  He says he does. The rules allow for either side to challenge Judge Spath’s assignment to the case; the defense now raises one. Thus Learned Counsel Richard Kammen rises to question Judge Spath, beginning with his conversations, if any, with Judge Pohl regarding the case.  Judge Spath spoke to Judge Pohl at a march judges’ conference, Judge Spath recalls, at which time the latter mentioned both Al-Nashiri and Judge Pohl’s coming departure from the case.  Around then, Judge Spath had been working to name potential Air Force assignees to the commissions’ judiciary: he named two persons, and himself. There was a second discussion. After Judge Spath’s assignment, Judge Pohl later reiterated to Judge Spath his plan to exit the case, and mentioned that Judge Spath would be the lucky replacement. But, Judge Spath now emphasizes, the conversation here was minimal---approximately fifteen minutes, and touching on things like Guantanamo logistics.  (The Air Force judge had never been to GTMO prior to this.)  The two commissions jurists only discussed the plan to handle pending motions past a certain date---they didn’t discuss the case’s substance, however.   Judge Spath earlier on had heard Judge Pohl mention Kammen, and Gen. Martins, the Chief Prosecutor---though the military judge says Judge Pohl was neither critical nor complimentary of either.  When asked about other contacts, Judge Spath also mentions his running into Col. Michael Breslin, an acquaintance then finishing his tenure as legal advisor to the Convening Authority.  They too engaged in pleasantries only, though Breslin apparently told Judge Spath that his new assignment would be “an interesting experience.”  Judge Spath has had no conversations with the Chief Prosecutor about the case; Judge Spath has run into the Chief Defense Counsel, Air Force Col. Karen Mayberry, at social functions (he knows the latter’s husband), but again, Judge Spath hasn’t spoken to the Chief Defense Counsel about substance.  No intelligence agency or interested party has spoken to the court about Al-Nashiri’s prosecution, either. By statute, Judge Spath has seven and a half years to remain a military judge, absent early retirement or something similar. What about the death penalty?  The court disputes any suggestion that, because he served as the prosecutor in a high profile capital case previously---the prosecution of Senior Airman Andrew Witt---he harbors any formed view about capital punishment.  Had Judge Spath been appointed to the defense in that same case, he would have defended the accused there as vigorously as he prosecuted him.  As for his personal feelings, the military judge says only that he has “struggled” with capital punishment issues, if only in the same way that all persons have---over questions of conviction accuracy, the high costs, the prospect of racial bias, and so on. But Judge Spath stops there, stressing that he will form conclusions in this case based on facts and law only. The newly minted judge adds that he is not beholden to the Convening Authority; the latter cannot direct me "to do anything."  Above all--and this is the unsurprising theme woven into all the judge's answers---his role is ensure that the process is fair to both sides.  So what's a to do when (as here) procedural rules have significant, bad-for-accused unfairness baked in?  Judge Spath sidesteps Kammen's inquiry, while emphasizing once more that, yes, he strives to be fair. Then there’s publicity. Judge Spath says he hasn’t read anything about the case since his detailing---and indeed that he purposefully has avoided any media coverage.  (Lo and behold: one trial judge told Judge Spath that he could follow commission developments on some website called Lawfareblog---but Judge Spath says he hasn’t read that, either.)  Kammen next asks a number of policy questions---about the U.S. interests in cases such as these, about the value of executing individuals accused of terrorism, and so forth---which Spath declines to answer, either because he does not know the answer or doesn’t wish to give one. When asked about Islam, Spath says his knowledge is minimal; he tells the defense that he has Muslim friends, and that he has been deployed to Bahrain and Afghanistan.  As for radicalism, Spath says that, in all faiths, there are people who practice in extreme fashions---extremely devout as well as extremely casual. The military judge doesn’t believe he knew any victims of the 9/11 attacks personally, though he acknowledges that the attacks marked “an event in our national psyche.” Kammen asks whether Al-Nashiri’s torture at CIA hands would be mitigating, for punishment purposes in this capital case; the military judge doesn’t answer.  But he nevertheless observes that the defense has broad discretion to advance---to the members, after conviction---mitigation arguments. He’s also unaware of discussion about possible CIA destruction of evidence.  On that point, though, and in light of this case’s history, and recent events, what steps can Judge Spath take to keep the CIA honest?  The military judge says he doesn’t know, and offers no hint, other than to say that come time, he will instruct members about the imperative to assess the credibility of witnesses and evidence. The issue needs no explanation, but Kammen still offers one: he’s thinking now about the AE120 series, in which the commission earlier ordered certain discovery into the CIA’s RDI program.  The lawyer is thus keen to police, in advance, what he knows to be forthcoming---doubtful government assurances that the CIA-related document production is truly complete.  The court’s answer here, and a few more after it, are broad and consist only of a general pledge to follow the law and to ensure fair play.  A Torture Convention obligation to report incidents of detainee abuse? Judge Spath will follow the relevant law here, in devising a course of action; ditto, if Kammen seeks testimony from, say, Condoleeza Rice or Rumsfeld about Al-Nashiri's treatment. The court is likewise non-committal about the federal-courts-versus-military-commissions debate, which Judge Spath characterizes as a “policy” dispute; or about the obligation, if any, to give effect to the NDAA’s promise of fair resources for commissions prosecution and defense. We break for a recess.